What different kinds of domestic relations actions can be filed in Kansas?
The kinds of domestic relations (family law) actions that can be filed in Kansas depend upon whether the relationship involved is “marital” or “non-marital.”
1. Marital Relationships:
A “marital” relationship is a “marriage.” A “marriage” can be “licensed” or “common law.”
A “licensed” marriage is one in which the parties obtained a marriage license from the state and were married as provided by the laws of the place where they were married.
A “common law” marriage is one in which the parties became married under certain “common law” rules. Not all states allow people to become married at “common law” in that state; however, every state recognizes common law marriages entered in another state. States divorce couples who are married at common law in the same way that they divorce couples who obtained a marriage license – and decides all other issues between them in the same way.
If a couple is married, whether by license or at common law, they can only divorce by court order. There is no such thing as a “common law divorce.”
Three different kinds of domestic relations actions exist effecting the marriage relationship in Kansas – divorce, annulment, and separate maintenance. Each of these types of marital action effects the couple’s marital status in a different way.
a) Divorce. The first kind of action is the most commonly known. It is the “divorce.”
A divorce requests that the marriage of the parties to the action be dissolved. A divorce presumes that the marriage of the parties is valid and that there will be no marital relationship between the parties after the requested order is granted. This action also requests that the court make orders regarding property and debt division, child custody, residency, parenting time, third party visitation and child and spousal support issues, if those are appropriately before the Court.
b) Separate maintenance. The second kind of action is a “separate maintenance” action.
The “separate maintenance” action is a form of what is commonly known as a “legal separation.” A separate maintenance action does not dissolve the parties’ marriage, but does request that the court issue various orders regarding property and debt division, child custody, visitation and support and spousal support issues. The separate maintenance action is basically a holdover from earlier times when divorces were more difficult to obtain. It is not commonly filed and may increase costs. If a separate maintenance action is filed by one party and the other party requests a divorce, the court must grant the divorce rather than the separate maintenance request.
c) Annulment. The third kind of domestic relations action is an “annulment.”
An annulment can be requested no matter how long or short the couple is married, as long as the requirements of the statute are met to obtain the annulment. An annulment may be obtained if the marriage is a “void” marriage or a”voidable” marriage.
(i) A “void” marriage is a marriage prohibited by the laws of the state in which the couple married. Examples are marriages between a couple too closely related (first cousins or closer in Kansas) and marriage between two people when one of them is still married to another person. If a marriage is “void,” Kansas courts must grant a requested annulment.
(ii) A “voidable” marriage is a marriage that may be invalidated by one of the parties to the marriage because of some “material fact” that existed when the couple married. Examples of “voidable” marriages are a marriage in which one (or both) parties did not know about a “material fact” that existed when they entered into the marriage that would have led them not to marry if that fact had been known (called a “mistake of fact”) or when one party was caused to enter the marriage by a fraudulent representation. If a marriage is “voidable,” Kansas courts may, but are not required to, grant a requested annulment.
2. Non-Marital Relationships:
When two people are not married to each other, their rights, duties, and obligations to each other are governed by different rules than divorce, separate maintenance, and annulment. For example, since the parties are not married, they do not need to obtain a ‘divorce’ in order to end their relationship. But even though a couple is not married, they may have rights to property that they accumulated and do have rights, duties, and obligations for children born of the relationship even though they are not married. Additionally, although unmarried couples do not obtain a “divorce,” Kansas law recognizes that people who have lived together may obtain property and debt together that should be ‘equitably divided’ at the end of the relationship. The only way to know what rights you have is to consult with an attorney about your specific situation.